IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO.
D1306/01
In the matter between:
DEPARTMENT OF HEALTH, KWAZULU NATAL
Applicant
and
AUBREY NGCOBO N.O. 1st
Respondent
PUBLIC HEALTH AND WELFARE BARGAINING
COUNCIL 2nd
Respondent
G MILLS 3rd
Respondent
__________________________________________________________________
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JUDGMENT
__________________________________________________________________
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NDLOVU AJ
[1] This matter was presented to me this morning. It is a review
application in terms of section 145 of the Labour Relations Act 66
of 1995, seeking to review and set aside an arbitration award
dated 1 August 2001.
[2] The Applicant is the former employer of Mr G Mills (the Third
Respondent herein) who was employed with the Applicant as
Administration Officer, stationed at Addington Hospital, and who
was dismissed by the Applicant on 28 June 1998 after a
misconduct enquiry. The Third Respondent claimed that the
dismissal was unfair and referred the matter to the Bargaining
Council (the Second Respondent) for conciliation. The dispute
remained unresolved, whereafter it was referred for arbitration
by the First Respondent, who was appointed by the Second
Respondent.
[3] The First Respondent found that although the Third Respondent
was guilty of misconduct, the sanction of dismissal was too harsh
and called to be substituted. It appeared that the First
Respondent would have ordered the reinstatement of the Third
Respondent, but for the fact that the Third Respondent was then
already employed elsewhere. He then felt that a compensatory
award would be appropriate in the circumstances. Hence, the
First Respondent ordered the Applicant (the Respondent in the
arbitration hearing) to pay to the Third Respondent (the Applicant
in the arbitration hearing) compensation in the sum of R18
000,00. It is against this award that the Applicant seeks an
order by this Court to have it reviewed and set aside.
[4] It is now settled law that the arbitration award is an
administrative decision given by an arbitrator in his or her
capacity as a public functionary by virtue of the public power
vested in him or her by the Act ( See: Carephone vs Marcus
N.O. and others [1998] 19 ILJ 1425 (LAC) at 1431 H-I).
[5] In Pharmaceutical Manufacturers Association of SA and
Others: in re: Ex parte Application of the President of the
RSA and others 2000(3) BCLR 241 (CC) the Constitutional
Court held that:
“ As long as the purpose sought to be achieved by the exercise of
public power is within the authority of the functionary, and as
long as the public functionary’s decision, viewed objectively, is
rational, a court cannot interfere with the decision simply
because it disagrees with it, or considers that the power was
exercised inappropriately. A decision that is objectively irrational
is likely to be made only rarely but if this does occur, a court has
the power to intervene and set aside the irrational decision”. (at
273/4, para 90).
[6] In Carephone the Labour Appeal Court (LAC) formulated the
guideline which a review court must follow in determining
whether or not the arbitration award is reviewable, which the LAC
framed as follows:
“Is there a rational objective basis justifying the connection made
by the administrative decision maker between the material
properly available to him and the conclusion he or she eventually
arrived at?” (at 1435, para 37).
[7] It is common cause that on 28 June 1998 the Third Respondent,
whilst in the execution of his official duties, collected the sum of
R50,00 from a patient, Mrs Khama, who had paid a medical visit
to Addington Hospital and was tendering such money to the Third
Respondent as hospital fees. The amount of fees chargeable
was R10,00, which meant that Mrs Khama was entitled to receive
R40,00 change from the Third Respondent. However, the Third
Respondent did not give Mrs Khama her R40,00 change. Mrs
Khama went to report the matter to a Ms Scott, another hospital
official. Ms Scott further reported the matter to a Mr Naidoo, a
seemingly higher hospital official. As a result, the Third
Respondent was charged with misconduct.
[8] Before the misconduct enquiry was held, the Third Respondent
was removed from the post of cashier and posted in the Medical
Records section, where he would not be involved with any cash
transactions. He worked in that section for approximately 18
months. According to the evidence led at the arbitration, on
behalf of the Applicant, no further problems were encountered
with the Third Respondent whilst posted at the Medical Records
section.
[9] Eventually the misconduct hearing was convened. The Third
Respondent admitted having received from Mrs Khama the sum
of R50,00 cash, from which he was to take R10,00 hospital fees
and return R40,00 change to Mrs Khama. He admitted that he
did not return the said change to Mrs Khama. In his defence he
said he had first issued and given the R10,00 receipt to Mrs
Khama, whereafter he attended to getting her the change from
the till. He said that by the time he turned to give the change to
Mrs Khama, she was already gone and disappeared in the long
queue. He could not leave his post to search for her.
[10] The Third Respondent further testified that on the following day
(29/6/98) he had again seen Mrs Khama at the hospital. He said
Mrs Khama merely waved to him and stated that she had come
to the hospital to collect her change. However, Mrs Khama had
suddenly disappeared again and he (the Third Respondent) did
not see her anymore; hence he could not give her the change.
[11] He further testified that he had told Mr Naidoo and Ms Scott that
he had put Mrs Khama’s R40,00 change in the till together with
his float money. However, when Mr Naidoo and Ms Scott went to
check the Third Respondent’s float, no R40,00 surplus was found.
[12] The First Respondent dismissed the Third Respondent’s defence
completely. In his finding he held, inter alia, as follows:
“Based on the Applicant’s own evidence, I find it difficult to
accept his version of events relating to the manner in which he
handed over the receipt without the change to the patient.
Having been to the counter and witnessed how the cashiers
operate, I find it difficult to accept that the patient would have
disappeared so quickly without the Applicant observing her.
What I find even more difficult to accept is that on the following
day the patient came back to the hospital, she told the Applicant
that she was there to collect her change but then disappeared
without her actually collecting the change. It must be
considered that at this stage the Applicant had already been
reported to Ms Scott and the patient had been to the SAPS to
make a statement. It seems to me therefore highly incredible
that a person such as Mrs Khama who had been so determined to
obtain her change would, when she came back to the hospital for
the very specific purpose of collecting this change, simply greet
the Applicant and then walk away”.
[13] The First Respondent found, accordingly, that the Third
Respondent had deliberately withheld Mrs Khama’s change. For
that reason, he found that the Third Respondent was correctly
convicted of the misconduct.
[14] What is remarkable in the First Respondent’s award was that, as
a further ground for upholding the Third Respondent’s conviction
for misconduct, the First Respondent had made a further finding
which read as follows:
“Even though the money belonged to the patient and not to the
hospital the fact remains that in conducting himself as he did the
Applicant brought the Respondent’s institution into disrepute and
disgrace as well as seriously undermining the relationship of trust
between himself and the Third Respondent”.
[15] To my mind, the finding that the Third Respondent’s misconduct
seriously undermined the relationship of trust between himself
and the then Respondent (now the Applicant), was rather more
relevant to the issue of determination of the appropriate
sanction, than the issue of whether the Third Respondent was
guilty or not of the misconduct charged. Where a relationship of
trust between employer and employee has irretrievably broken
down, as appears to be the case here, the sanction of dismissal is
generally not inappropriate.
[16] The First Respondent further pointed out that the Third
Respondent did not give any evidence in mitigation of sentence,
at the misconduct enquiry. He appeared to shed some blame on
the presiding officer of the enquiry, in that he (the presiding
officer) had not sufficiently or properly canvassed factors that
might have been relevant to the mitigation of sentence. In his
own words he said: “In the premises it seems to me that the
presiding officer should have gone out of his way to establish
from the Applicant via his representative whether he had indeed
such mitigating factors and to consider them”.
[17] By the way, the Third Respondent was represented by an
attorney at the misconduct hearing. It is, therefore, not clear to
me what the First Respondent expected the presiding officer
(who was presumably not legally qualified and/or trained) to have
done when the Third Respondent was duly represented by a
qualified legal practitioner. In my view, this criticism of the
presiding officer by the First Respondent was unfair.
[18] In my view, the nature and seriousness of the transgression
which the Third Respondent was correctly convicted of (as so
duly found by the First Respondent) was such as to have properly
warranted a sanction of dismissal. Therefore, the dismissal of the
Third Respondent was, to my mind, both substantively and
procedurally fair.
[19] The First Respondent’s award was, accordingly, not rationally
justifiable in relation to the material presented before him and his
reasons that he gave therefor.
[20] In consequence whereof, I make the following Order:
20.1 The arbitration award issued by Commissioner Aubrey Ngcobo
(the First Respondent) on 1 August 2001 under Case Number
PSHS 149 is hereby reviewed and set aside, and substituted
therefor with the following:
“The dismissal of the Applicant was substantively and
procedurally fair”.
20.2 There is no order as to costs.
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S K NDLOVU
ACTING JUDGE OF THE LABOUR COURT
Date of hearing : 29 April 2003
Date of Judgment : 29 April 2003
Appearances:
For the Applicant : Adv. D P Crampton
Instructed by : Shepstone & Wylie
Tomlinson, Pietermaritzburg
For the Respondents : No appearance